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In that time, the court has said that extreme partisan gerrymandering—that is, drawing
voting districts to specifically favor one party over the other—can violate the Constitution.
But they haven’t figured out what, if anything, courts can do about it.

The issue confounded the justices earlier this term when they heard a partisan gerrymandering
challenge out of
Wisconsin. They didn’t seem any closer
here.

There was one thing many justices did seem to agree on: They could bounce the case
back to the lower court on a procedural issue without even addressing the merits.

Avoiding the issue this time around would allow the mid-term elections to take place
under maps that may later be determined to be unconstitutional. And it could mean
that state legislatures are left without any guidance on political considerations
when redistricting after the 2020 census.

But
Michael Li, of the Brennan Center for Justice, New York, who was in the courtroom for oral arguments,
said that though several justices seemed interested in taking this route, it’s not
clear that that’s where they will go.

Too Late

Justice Ruth Bader Ginsburg was the first to identify the procedural issue. Early
on in the argument, she noted that the case comes to the Supreme Court on the denial
of a preliminary injunction.

One thing the court looks to when assessing whether to issue a preliminary injunction
is whether the plaintiffs will suffer irreparable harm without one.

But it’s too late for the lower court to draw a new map for the 2018 mid-term elections,
Ginsburg said. So how will you be irreparably harmed without the preliminary injunction?
she asked the challengers’ attorney, Michael Kimberly, of Mayer Brown LLP, Washington.

Kimberly didn’t think it was too late for the lower court to come up with a short-term
solution.

Justice Anthony M. Kennedy—who could be the deciding vote in the case—wasn’t having
it.

People are already planning their campaigns, Kennedy said. It would be highly disruptive
to the current election cycle if this court suggested that a new map might have to
go into effect before the election, he said.

Put Up With Harm

Some of the justices suggested that the challengers didn’t just wait too long to get
relief ahead of the 2018 election, but that they had waited too long in general.

“You waited an awfully long time to bring this suit” given that the redistricting
changes happened in 2011, Justice Sonia Sotomayor said.

Because “of your delay, elections have been held under this” map “in 2012, 2014, and
2016,” Chief Justice John G. Roberts Jr. said. If “you’ve been willing to accept that
harm in three different cycles, I don’t know if we should get concerned about irreparable
harm for one more,” he said.

Kimberly responded that the plaintiffs originally brought their case in 2013. But
they had to go all the way up to the Supreme Court to even get a court to hear the
case.

A lower court initially threw out the case, saying it had no merit. The Supreme Court
in
2015 said a special three-judge district court panel had to hear plaintiffs’ claims.

So the delay isn’t due to the plaintiffs, Kimberly argued.

Even More Extreme

Sotomayor, though, wondered what would happen if the Supreme Court decided to send
the case back to the lower court.

There would be a trial on the merits, Kimberly said. But because Kimberly thinks the
lower court relied on the wrong standard when determining what the plaintiffs had
to show in order to be successful, he said that the trial would go forward based on
a “fundamentally misguided view” of the law.

That raises the possibility that the case will just return to the Supreme Court to
address the very issue in front of it now.

Well, “the Court can pick out of the different criteria” on which “it wants to base
its decision,” Roberts said. “And I think it’s part of your challenge today to explain
to us why we should pick out the hardest one,” he said, referring to Kimberly’s suggestion
that the court decide the question of whether and how courts can police partisan gerrymandering.

Lower courts are asking for guidance on this issue, Kimberly said.

And state legislatures, too. They will go through another round of redistricting following
the 2020 census. And without some limits from the Supreme Court, technological advances
could make partisan gerrymanders even more extreme the next time around.

If “you think what’s happened now is something, wait until you see those computers
really working,” Justice Stephen G. Breyer said.

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